UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed: January 3, 1977.
UNITED STATES OF AMERICA
MELVIN A. SLAWIK, BRUCE A. UFFELMAN, DANIEL RAPPA, MARIO CAPANO MELVIN A. SLAWIK, APPELLANT
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Crim. No. 75-110)
Aldisert and Gibbons, Circuit Judges, and McGlynn,*fn* District Judge.
Opinion OF THE COURT
GIBBONS, Circuit Judge
Melvin A. Slawik appeals from a judgment of sentence imposed pursuant to a jury verdict finding him guilty on three counts of making false declarations before a grand jury in violation of 18 U.S.C. § 1623.*fn1 We reverse.
Slawik, at the time of trial, was the elected County Executive of New Castle County, Delaware. His indictment grew out of a federal investigation of the relationship between contractors and various New Castle County public officials.*fn2 In the course of that investigation the United States Attorney became aware that one Bayard Austin, a former political associate of Slawik, might have relevant information.
Austin, then living in Orlando, Florida, was interviewed there by F.B.I. Agents on August 4, 1974. Austin asserted the fifth amendment privilege against self-incrimination. On August 8, 1974, the agents advised Austin they were authorized to grant him immunity from prosecution. With this assurance, he gave the agents a statement about various matters in New Castle County. They discussed installing a recording device on Austin's telephone and Austin's using a concealed recording device on his person, in order to record conversation between Austin and his former New Castle County associates.
On October 9, 1974, a recording device was placed on Austin's telephone. Austin then called Slawik who eventually returned his call. Other telephone conversations followed. On October 14, 1974, Austin, Slawik, and three other New Castle County associates met in Florida. Austin's concealed recording device was running. Throughout the telephone conversations and the meeting, Austin maintained the pretense that he was not yet cooperating with the F.B.I. He did not disclose that he had been granted immunity. On October 23, 1974 one additional call between Austin and Slawik was recorded. The United States Attorney's office promptly obtained all of the recordings described above.
Slawick was subpoenaed to testify before a federal grand jury in Wilmington, Delaware on December 11, 1974. The Assistant United States Attorney who conducted the examination had already studied the tapes. However, he disclosed to Slawik neither their existence nor the fact of Austin's cooperation.*fn3 The December 11 examination of Slawik covers more than 200 pages of transcript. The charges of making false declarations presently before us arise from that testimony. The principal evidence the government relied on to prove its case is the recordings.
Each of the three counts set forth in identical terms the subject matter of the grand jury's investigation.*fn4 Each count set forth in identical terms that which the government contended was material to the investigation.*fn5 In the third paragraph of each count, the indictment set forth a specific material matter as to which Slawik allegedly gave false testimony.*fn6
The indictment did not state why or how these three areas of inquiry were matters material to the grand jury's investigation. In a motion for a bill of particulars, Slawik sought to learn, with respect to paragraph three of each count, the material matter which the government did not believe to be true, the reason it was material, and the particularized facts on which the government relied in support of the allegations that the specified testimony was false. The district court sustained the government's refusal to answer those questions. The government did answer, however, a question with respect to the factual basis of the materiality allegations in paragraph 2 of each count:*fn7
"The factual basis for the materiality allegations is based upon the fact that the testimony was capable of influencing the tribunal in its investigation and had the natural effect or tendency to influence, impede, hamper, or dissuade the Grand Jury from pursuing its investigation." United States Response to Defendant Melvin A. Slawik's Motion for a Bill of Particulars, Counts 7, 8, and 9.
Materiality is an essential element of a violation of 18 U.S.C. § 1623 and a question of law, decision upon which is reserved to the court.*fn8 Slawik's statements are set forth in the margin.*fn9
To appreciate answer number five,*fn10 it must be read in context. The examiner's prior questions elicited the answers, not claimed to be false, that Slawik went to Florida to talk to Austin about getting an attorney, and about coming to Wilmington to testify before the grand jury. Answer number five is in response to a paraphrase by the government attorney of this prior testimony:
Q: So you went there and said you got a subpoena. You got to testify.
A: Can I explain?
Q: Sure. Go right ahead.
Answer number six,*fn11 too, was in response to the government attorney's paraphrase of the prior answer.
It is the government's position that the answers to questions five and six, both referring to a conversation in Florida on October 14, 1974, were understood by the questioner, by Slawik, and by the grand jury to convey:
(1) That Slawik advised Austin to get independent legal counsel, as opposed to using counsel provided by a co-conspirator;
(2) That he urged Austin to testify before the grand jury and to testify truthfully, rather than merely to appear and plead the fifth amendment.
The tape recording of the October 14, 1974 conversation, in the government's possession at the time of Slawik's grand jury appearance, reveals that Slawik certainly was not enthusiastically urging that Austin appear before the grand jury and incriminate Slawik. Nonetheless, answers five and six may be said to paraphrase substantial portions of the transcript of the October 14, 1974 recording, quoted in the margin.*fn12
The transcript of the tape of the October 14, 1974 meeting is 65 pages long. In the course of the conversation, Austin did tell Slawik he did not want to go back to Delaware, and Slawik did tell Austin that he would have to return to Delaware whether he liked it or not, and that he should not go before the grand jury without a lawyer. He told Austin it might be advisable to resort to a claim of the fifth amendment privilege against self-incrimination, and also told him he would arrange to get him a lawyer. It cannot fairly be said that there was any specific reference to independent legal counsel, nor did Slawik tell Austin to testify truthfully and waive his fifth amendment privilege.
But Slawik was never asked, before the grand jury, whether he advised Austin to assert the privilege against self-incrimination, nor was he asked if he suggested independent legal counsel.*fn13 Instead, he was asked no question at all, and simply responded to the prosecutor's paraphrase - a paraphrase which would trap an unwary, assenting witness in perjury. The paraphrase was "So you went there and said you got a subpoena. You got to testify." Slawik "explained" by enlarging:
"Look Barney [sic] you will probably only be there a day. Get yourself legal counsel, tell them the truth. They are not going to hold you. You can go back to Florida." (emphasis supplied).
It is the government's position that the italicized language was understood by the grand jury to mean "tell the grand jury the truth." But in the context of the sentence in which the words were used they could just as well have meant "tell legal counsel the truth." Neither the indictment nor the bill of particulars sets forth the grand jury's understanding of these words. The government contends that an exculpatory construction is barred by the examiner's second paraphrase:
So, basically your trip down there revolved around a discussion with him to convince him to come up here and testify, get it over with, and be truthful. (emphasis supplied).
Aside from the fact that even the paraphrase is ambiguous, it is clear that Slawik did not accept it as his own. He replied:
Get the damn thing over with and nobody is going to hold you, nobody is going to do anything.
He did not accept the paraphrase, if it was intended to mean "testify truthfully before the grand jury."
The ambiguity is critical. For Slawik's reply to have been a violation of § 1623, it must have been both false and material. If literally true, there was no offense, even if Slawik's answer was deliberately misleading. Bronston v. United States, 409 U.S. 352, 34 L. Ed. 2d 568, 93 S. Ct. 595 (1973). And a false answer, if immaterial was similarly inoffensive under federal law. Nothing in the record before us gives any indication what the jury thought was false: we cannot say whether the trial jury found that Slawik had failed actually to advise Austin: (1) to tell counsel the truth, or (2) to tell the grand jury the truth. And nothing in the indictment or the bill of particulars tells us which construction the grand jury placed on its charge.*fn14
Thus, the trial jury might have found either of two possible falsehoods, only one of which was material, in Slawik's grand jury testimony. Although materiality is a question of law over which we exercise plenary review,*fn15 the imprecision of the allegations contained in the indictment and bill of particulars renders meaningful review of materiality impossible. Our decision is not based on a slavish acceptance of appellant's construction of his statements. Indeed, this would be an easy case if the meaning of Slawik's statement was clear. Rather, we hold that a conviction under 18 U.S.C. § 1623 may not stand where the indictment fails to set forth the precise falsehood alleged and the factual basis of its falsity with sufficient clarity to permit a jury to determine its verity and to allow meaningful judicial review of the materiality of those falsehoods. To hold otherwise would permit the trial jury to inject its inferences into the grand jury's indictment, and would allow defendants to be convicted for immaterial falsehoods or for "intent to mislead" or "perjury by implication" - which Bronston specifically prohibited.
We emphasize that the government knew, in this case, the precise content of each of Slawik's statements to Austin. It was free, in its evident determination to trap appellant in perjury, to ask more pointed questions. And it was free, in its indictment and its bill of particulars to set forth with crystal clarity its allegations of falsehood and materiality. This court cannot and will not affirm a criminal conviction on so nebulous a legal and factual matrix. The district court denied Slawik's motion to dismiss the indictment on Count 7.*fn16 The motion should have been granted.
We are reinforced in our determination that the conviction on Count 7 may not stand by the holding of the Supreme Court in Bronston v. United States, 409 U.S. 352, 34 L. Ed. 2d 568, 93 S. Ct. 595 (1973) that if the prosecutor never asks the critical question and never presses for an unequivocal answer the defendant may not be convicted of false swearing. In the words of Chief Justice Burger:
Under the pressures and tensions of interrogation, it is not uncommon for the most earnest witnesses to give answers that are not entirely responsive. Sometimes the witness does not understand the question, or may in an excess of caution or apprehension read too much or too little into it. . . . It is the responsibility of the lawyer to probe; testimonial interrogation, and cross-examination in particular, is a probing, prying, pressing form of inquiry. If a witness evades, it is the lawyer's responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination.
It is no answer to say that here the jury found that petitioner intended to mislead his examiner. A jury should not be permitted to engage in conjecture whether an unresponsive answer, true and complete on its face, was intended to mislead or divert the examiner; the state of mind of the witness is relevant only to the extent that it bears on whether "he does not believe [his answer] to be true." To hold otherwise would be to inject a new and confusing element into the adversary testimonial system we know. Witnesses would be unsure of the extent of their responsibility for the misunderstandings and inadequacies of examiners, and might well fear having that responsibility tested by a jury under the vague rubric of "intent to mislead" or "perjury by implication."
409 U.S. at 358-59.
What the Chief Justice said in the context of an adversarial proceeding, in which lawyers for other interested parties participated and might have eliminated the ambiguities, applies a fortiori to uncounseled appearances before a grand jury. Indeed the grand jury context adds a new element of speculation to the petit jury's role if, as in this case, it is permitted to resolve not only the ambiguity of the interrogator's question and the defendant's response, but also the ambiguity of the grand jury's understanding of both question and response. See United States v. Razzaia, 370 F. Supp. 577, 579 (D. Conn. 1973). Especially where, as here, the interrogator had the clear option of resorting to references to a transcription of the October 14, 1974 conversation in order to insist upon precision, no sound public policy is advanced by a conviction for false swearing under Count 7. The false swearing statute is a potent prosecutorial tool, allowing convictions on a significantly lower standard of proof than the perjury statute, 18 U.S.C. § 1621. But Congress in its wisdom chose not to eliminate the requirements that an indictment be based only on a knowingly false, material misstatement. It would be judicial legislation of the most pernicious order to read those requirements out of the statute. At best the petit jury, on the evidence presented, was allowed to convict for "intent to mislead" or for "perjury by implication." Such a verdict may not stand, and the judgment of conviction on Count 7 must be set aside, for indictment insufficiency and failure of proof of an offense under 18 U.S.C. § 1623.
The testimony set forth in Count 8 is quoted in the margin.*fn17 Count 8, like Count 7, was narrowed by the bill of particulars. As with the answers claimed to be false in Count 7, these answers must be read in the context of the examiner's interrogation. Although in defending the sufficiency of Count 7 the government urged that Slawik conveyed the misleading impression that he was advising Austin to obtain independent counsel,*fn18 the interrogation quoted in Count 8 commences with the question, "Did you contact a lawyer down there" and the answer that ". . . the lawyer that was contacted was Arthur Inden and the suggestion came from Danny Rappa. I think Inden is Rappa's lawyer."
"Q: So then you must have discussed Austin's situation with Rappa?
Q: Anybody else?
A: Well I might have mentioned it to Pete Ross, you know. I mention everything to him. I think I even talked to Tom Luce about it because of the relevance of the Plumco situation.
Immediately following the answer about speaking to Pete Ross and Tom Luce came the series of questions to which the answers are claimed to be materially false. The government, in order to establish their materiality and falsity reconstructs them in this manner:
"Q: What did Rappa have to do with this? [the fact the FBI was interrogating Austin]
[5.] A: Nothing, only in so far as suggesting a lawyer his lawyer.
Q: How did it [the fact the FBI was interrogating Austin] come up, just in casual conversation ?
[6.] A: Yes.
Q: Was he [Daniel Rappa] involved in this thing [the fact that the FBI was interrogating Austin]?
[7.] A: Directly, no.
Q: So you just mentioned it [the fact that the FBI was interrogating Austin] to him [Daniel Rappa] casually ?
[8.] A: Yes.
Government brief p. 26 (emphasis in original).
By inserting the bracketed matter the government insists that the answers were understood to be in response to questions in the expanded form, and that those answers conveyed the false impression that Rappa's only involvement in the conversations between Slawik and Austin was to suggest an attorney. But the prosecutor knew, from the tapes, the precise extent of Rappa's participation in conversations with Austin. It never pressed the point by asking a more direct question.
We have the same difficulty with the attempted reconstruction of Count 8 as with Count 7. The initial question in the series referred to obtaining counsel for Austin. So did the next one. The third question, referred ambiguously to "Austin's situation." The answer respecting conversations with Ross and Luce refer to "it " and the question about Danny Rappa asks what he had to do with "this." The government would have us assume that the grand jury understood the reference to "Austin's situation " to "it" and to "this" to be a reference, not to Austin's need for a lawyer - the subject matter of the initial interrogation - but to Rappa's interest in the broader subject of the FBI interrogation of Austin. It urges that the reconstruction is the only reasonable interpretation of the questions posed. We cannot so hold.
Our disposition of the appeal from Slawik's Count 8 conviction requires a construction of the rule of Chapin and Long, supra. Although inapposite to Count 7, they present a close question here, where Slawik's statements were plainly material and were offered in response to questions by the government. We begin by accepting the government's position that Bronston, supra, does not hold ambiguous questioning to be a safe conduct for perjury. Bronston involved literally true but misleading answers. See United States v. Corr, 543 F.2d 1042 (2d Cir. 1976). Long and Chapin address the question that necessarily arises when an answer would be true on one construction of an arguably ambiguous question but false on another: who decides which construction the defendant placed on the question? The solution offered by Long and Chapin, and by which we are bound, is that the petit jury decides.
But even as we eschew a broad reading of Bronston, so we decline to apply Long and Chapin in an overbroad fashion. Chapin involved an "answer [that] was knowingly false under the only reasonable interpretation of the question . . . ." 515 F.2d at 1283. Long involved alleged ambiguity in the terms "bribes," "kickbacks" and " payoffs ", terms which we held "are not terms of art, they are words of common currency which form part of the vocabulary of almost any American in his teens or older." 534 F.2d at 1100. But the questions asked to Slawik were not nearly as clear. In reversing the trial court's dismissal of the indictment in Long, we said that a charge of perjury may not be dismissed "when it is entirely reasonable to expect a defendant to have understood the terms used in the questions." Id. at 1101. In this case, defendant unsuccessfully moved the court for dismissal of the indictment on Count 8. We hold that this count, premised as it is on questions that were deliberately artless and vague, should have been dismissed, for it was entirely unreasonable to expect that the defendant understood the questions posed to him.
Given the narrow scope of review of jury verdicts under Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942), this count should never have gone to a jury. Glasser and Long have the capacity for totally insulating convictions under 18 U.S.C. § 1623 from judicial review, and thus totally eviscerating Bronston's clear warning against the use of imprecise questioning as a predicate for a perjury conviction. The conviction on Count 8 must be reversed for the insufficiency of the indictment.
The testimony set forth in Count 9 is quoted in the margin.*fn19 Like the others, it, too, was narrowed by the bill of particulars. From a colloquy extending for eighteen questions, the government extracted two answers which were allegedly false " . . . as it relates to his knowledge of the financing of a house purchased by Bayard Austin and any benefits derived from Bayard Austin." The other sixteen questions and answers revealed to the grand jury: that in May of 1974, Mario Capano and Slawik were anxious to have Austin remain a resident of Florida; that Austin's wife preferred to return to Delaware; that Austin located a house in Florida, and needed help in financing it; that Capano took steps to obtain a loan for Austin secured by a mortgage; that Slawik was aware that Capano helped Austin secure a mortgage; that one purpose of an April 1974 trip to Florida was for Slawik to find out what system was involved in obtaining the loan, "how much the house cost, this kind of stuff"; that the acknowledged purpose was so that Austin would not come back to Delaware; but that Slawik did not give Austin any money.
It is the government's position that answers No. 15 and 18*fn20 were knowingly false in that they were unequivocal denials of knowledge of Capano's participation in the arrangement to make a "hush money" loan to Austin, and that the answers, so construed, had the natural effect or tendency to influence, impede or dissuade the grand jury from pursuing its investigation of obstruction of justice or subornation of perjury. The ultimate issue, then is materiality. We must decide whether, after Slawik admitted that he was interested in keeping Austin from returning to Delaware, that he went to Florida "to find out what system was involved, how much the house cost, this kind of stuff," and that Capano was helping finance the house purchase, his unresponsive answers to questions No. 15 and 18 were such as to impede or dissuade the grand jury from its investigation. We hold that in the context of the overall line of questioning, these answers, even if not literally true, could not have had such an effect.
It is not a federal offense to help a friend or business associate finance a new house. If Slawik's allegedly false statements merely concealed such innocent aid, they could not possibly have been material. The real question before the grand jury was whether Slawik obstructed or conspired to obstruct justice, by buying Austin's silence. Slawik's admissions were nearly enough to indict him. He admitted numerous overt acts of aid for and involvement with Austin. He did not concede a motivation of obstructing justice. If Slawik had obtained financing for Austin and had denied it before the grand jury, that denial might have been a material misstatement. But in light of his admissions concerning his own conduct, we do not see how Slawik's failure to volunteer the details of Capano's financial arrangement with Austin could have had any material effect on the grand jury's investigation. Slawik did not conceal that there was a financial arrangement. We simply do not think it material whether Capano held a first mortgage or a second mortgage, or which banks, if any, were involved. Such information would be surplusage of the most trivial order, wholly beside the point of the investigation.
Moreover, the prosecuting attorney, having full knowledge from the tape recordings of Capano's participation and Slawik's awareness of that participation, made no effort to ask a more specific question, or to demand a more responsive answer. Since the materiality of the question is a matter for the Court, and we have concluded that the equivocations in questions 15 and 18 were not material, we need not consider Slawik's further contention that the answers, even though equivocal, were literally true. The conviction on Count 9 must also be set aside.
It is appropriate to add that the case illustrates the danger inherent in the use by government prosecutors of Title IV of the Organized Crime Control Act of 1970, P.L. 91-452. That title reduces the standard of proof required for a conviction for perjury under 18 U.S.C. § 1621. But as the legislative history makes clear, knowledge, falsity and materiality are distinct elements of the offense which must still be proved by the prosecution. See House Report No. 91-1549, 91st Cong. 2d Sess., 1970 U.S. Code Cong. and Admin. News 4023. If two contradictory material declarations are made under oath before a court or grand jury within the period of the statute of limitations, it may suffice that an indictment recite merely the materiality of each and their irreconcilability. 18 U.S.C. § 1623(c). But a tape recording of extra-judicial conversations does not serve the same purpose. In cases where the government is relying upon extra-judicial prior inconsistent statements to establish falsity, proof of mere inconsistency is not enough. The grand jury must charge specifically what it believes are the true facts. Moreover if the courts are to discharge their obligation of determining materiality they should be informed in the indictment in what manner the falsity alleged affected the grand jury's deliberations. Finally, without attempting to lay down any standard of prosecutorial conduct before the grand jury for all cases, we think it fair to say that if transcriptions of electronic interceptions are to be the basis for false swearing prosecutions we will insist that the government's interrogation be far more precise than in this case.
The judgment appealed from will be reversed.